Citation NR: 9734981
Decision Date: 10/16/97 Archive Date: 10/24/97
DOCKET NO. 93-11 819 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to service connection for dermatitis.
2. Entitlement to service connection for cystitis.
3. Entitlement to an increased (compensable) rating for
chronic filariasis.
4. Entitlement to an increased (compensable) rating for
residuals of malaria.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The veteran had active service from February 1942 to November
1945. This matter comes before the Board of Veterans’
Appeals (Board) on appeal of rating determinations of the New
York, New York, Regional Office (RO).
The issues of entitlement to increased (compensable) ratings
for filariasis and malaria are addressed in the remand
portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, it is asserted that the RO erred when it denied
service connection for dermatitis and for cystitis in that
these disorders are of service origin. Specifically, the
veteran reports in-service treatment for a fungus of the toes
and for jungle rot in the groin area.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met his
initial burden of presenting a well grounded claim for
service connection for cystitis.
It is also the decision of the Board that the evidence
supports a grant of service connection for dermatitis.
FINDINGS OF FACT
1. The claim for service connection for cystitis is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
2. The evidence of record is in equipoise as to whether the
appellant’s dermatitis is of service origin.
CONCLUSIONS OF LAW
1. The claim for service connection for cystitis is not well
grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997).
2. With resolution of reasonable doubt, the appellant’s
dermatitis was incurred in wartime service. 38 U.S.C.A.
§§ 1110, 5107(b) (West 1991 & Supp. 1997); 38 C.F.R. § 3.102
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection for Dermatitis
Criteria
Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces or, if
pre-existing such service, was aggravated therein.
38 U.S.C.A. § 1131 (West 1991). Such a determination
requires a finding of a current disability which is related
to an injury or disease incurred in service. Watson v.
Brown, 4 Vet. App. 141, 143 (1992).
For a showing of chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word “chronic.”
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact chronicity in service is not
adequately supported, a then a showing of continuity after
discharge is required to support the claim. 38
C.F.R. § 3.303(b) (1996).
Factual Background
A review of the service medical records is negative for a
report of skin problems during service. Post service records
in 1948, however, reflect that the veteran was seen for
infection and dermatitis of the dorsum of the toes. A
history of experiencing “similar difficulty” while in service
was noted. Additional private records (one that is undated
and one from 1956) show that the veteran purchased
medications to include “Desenex” powder.
In an informal hearing presentation in January 1994, it was
noted that the veteran never complained of his foot fungus
during service as this was a minor complaint compared to
other soldiers’ problems.
Upon VA skin examination in October 1992, the veteran
reported that while he was in service, he experienced jungle
rot which involved the groin area. He used powders and
salves for treatment which helped temporarily, but he
ultimately used these medications all of the time. He
reported that he continued to have a problem with the groin
area, but it was not as bad as it had been in the past.
Examination showed that there were scaly skin eruptions,
whitish/brown colored lesions in the extensor surface of both
elbows. A few skin eruptions in the right groin area were
also reported. Possible psoriasis of both elbows was noted.
In a July 1996 VA dermatological examination, the veteran
gave a history of experiencing a rash in the groin area since
1942. He had used an over the counter powder to treat this
disorder. Following examination, the diagnosis was
intertrigo ) mild but chronic. In an addendum, the examiner
noted that the veteran had a rash on the elbows of 10 years’
duration.
Analysis
The service medical records are negative for complaints of,
treatment for, or diagnosis of a skin disorder. Post service
records from approximately three years after service ( in
1948) show treatment for a skin disorder of the feet, with a
history of in-service skin problems reported. Additional
private records suggest treatment for skin complaints in the
1950’s and current examination report shows intertrigo
(dermatitis) of a mild but chronic nature.
The Board would entertain doubt that the appellant has
dermatitis that is attributable to his military service in
the 1940’s. Nevertheless, it can be argued that a mild but
chronic skin disorder has been indicated by the entire
evidence of record. It is the Board’s belief that the
evidence is in equipoise as to whether dermatitis is of
service origin. Given this equipoise, the benefit of the
doubt is resolved in favor of the appellant, and service
connection is granted for dermatitis. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102.
Service Connection for Cystitis
Factual Background
During service the veteran was seen for recurring malaria and
for filariasis. (Service connection has been established for
both of these disorders.) In recent years, the veteran
complained of “left testicle” residuals. It was noted,
however, by the Board in a February 1995 determination, that
VA examination in October 1992 (which reported possible
chronic urinary infection with cystitis) did not rule in or
rule out such residuals. It was requested that the veteran
be afforded a VA systemic/genitourinary examination to
determine the nature and extent of all residuals of
filariasis. It was also requested that the presence of
cystitis be ruled in or out.
The requested examination was conducted in July 1996. At
that time, the veteran was described as completely
asymptomatic. He had no hesitance, no dribbling, and no
frequency. The examiner noted that no cystitis was present
or identified.
Analysis
Service connection can be granted for disability resulting
from personal injury suffered or disease contracted in line
of duty. In this case there is no competent evidence of
record to support the contention that cystitis is present.
In the absence of evidence indicating the presence of current
disability or disease, a claim for service connection is not
plausible and accordingly is not well grounded. Caluza.
Because the veteran’s claim is not well grounded, VA is under
no duty to assist the veteran in further development of this
claim. 38 U.S.C.A. § 5107(a); Murphy.
The Court has defined a well grounded claim as one that is
plausible, that is, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). The Court has further pointed out that under
the governing statute, although the claim need not be
conclusive, it must be accompanied by evidence. Tirpak v.
Derwinski, 2 Vet. App. 609 (1992) (emphasis in the original).
If a claim is not well grounded, VA has no “duty to assist”
the appellant in developing facts as under the law, the
appellant must first meet his chronological obligation of
submitting a well grounded claim. Gilbert v. Derwinski, 1
Vet. App. 61 (1990). The purported adjudication of a claim
that was not well grounded would be a “nullity in
contemplation of law.” Grivois v. Brown, 6 Vet. App. 136
(1994).
The Court has further held that the essential elements
required to demonstrate the presence of a well grounded claim
and the type of evidence required to establish each element
consists of the following:
(1) Competent evidence of current disability (medical
diagnosis); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
(2) Evidence of incurrence or aggravation of disease or
injury in service (lay or medical evidence); Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet.
App. 465 (1994).
(3) Evidence of a nexus between the in-service injury or
disease and the current disability (medical evidence or
presumption that certain disabilities manifest within certain
periods are related to service); Grottveit v. Brown, 5 Vet.
App. 91, (1993); Lathan v. Brown, 7 Vet. App. 359, 366
(1995).
Also controlling in this case are decisions of the Court
concerning the types of evidence required to establish
important facts. The Court has held that a lay person can
provide probative eye-witness evidence of visible symptoms,
however, a lay person can not provide probative evidence as
to matters which require specialized medical knowledge
acquired through experience, training or education. Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has
further held that “where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is ‘plausible’ or
‘possible’ is required.” Grottveit, 5 Vet. App. at 93.
Finally, the basic framework of the law and regulations
provides that service connection may be established for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1996).
Although the Board considered and denied the appellant’s
claim on a ground different from that of the RO, which denied
the claim on the merits, the appellant has not been
prejudiced by the decision. This is because in assuming that
the claim was well grounded, the RO accorded the appellant
greater consideration than his claim in fact warranted under
the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993).
In light of the implausibility of the appellant’s claim and
the failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny his appeal for entitlement to service
connection for cystitis.
The Court has held that, pursuant to 38 U.S.C.A. § 5103(a)
(West 1991 & Supp. 1997), the Secretary has a duty to notify
the claimant of the evidence need to make the claim well
grounded if the application is incomplete and VA is on notice
of the existence of evidence that would make the claim well
grounded. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996);
Epps v. Brown, 9 Vet. App. 341 (1996). The veteran was
informed of the basis on which his claim was denied in the
rating determination and statement of the case. Moreover, he
has not indicated the presence of any evidence that would
demonstrate that he now has cystitis linked to service. In
light of the facts and circumstances of this case, the Board
is of the opinion that any duty to “advise” under § 5103(a)
has been satisfied.
ORDER
Entitlement to service connection for dermatitis is granted.
The veteran not having submitted a well grounded claim of
entitlement to service connection for cystitis, the appeal is
denied.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
An Increased Evaluation for Filariasis
The service medical records reflect that the veteran was
treated during service for filariasis of both fibrotic cords.
Upon examination in October 1945, a thickening of the left
spermatic cord was noted. Rating determination in January
1946 established service connection for this disorder and a
10 percent evaluation was assigned. At the time VA
examination in November 1946, the epididymitis of the left
testicle was enlarged. The appellant was tender to touch.
It was noted that he wore a support, and that he experienced
considerable pain when lifting heavy objects. Upon rating
determination in March 1947, the 10 percent rating was
increased to 30 percent.
VA examination in February 1950 reflected that both
epididymitis were normal. The left spermatic cord was slight
larger than the right. No residuals of filariasis were
indicated. Subsequently, rating determination in March 1950
reduced the 30 percent evaluation to a noncompensable
evaluation. In 1992, the veteran filed a claim for an
increased rating stating that this disorder had increased in
severity. In a February 1993 statement, the veteran asserted
that his left testicle was swollen and had been ever since
military service.
In a February 1995 remand decision, the Board noted that the
veteran claimed “left testicle” residuals, but that such
residuals had not been ruled out upon VA examination in
October 1992. Additional examinations were requested
(systemic and genitourinary). Upon VA examination in June
1996, the veteran experienced some tenderness on both
testicles, worse on the right. His scrotum was also
enlarged, and there was pian on the inguinal area on deep
palpation. A history of filariasis was noted.
Under the governing criteria, a 30 percent rating may be
assigned for chronic filariasis, following any recurrence,
symptomatic. With subsidence of symptoms following only one
attack a noncompensable evaluation will be assigned. A 10
percent evaluation may also be assigned for mild permanent
deformity of an extremity or the genitalia. Code 6305.
It is the Board’s determination that the recent VA
examination is inadequate to rate the service-connected
filariasis. In attempting to resolve the veteran’s appeal,
the Board is still vexed by the same evidentiary problem that
resulted in the February 1995 remand. The requested
examination report shows that the veteran is currently
suffering from tenderness of the testicles, and his scrotum
is enlarged. It is unclear as to whether these symptoms are
manifestations of the service-connected filariasis. Without
more complete clinical information, the rating criteria
cannot be properly applied.
The Board is required to justify its determinations by
articulating adequate reasons and bases for its decisions,
See Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and may
consider only independent medical evidence in the record, See
Colvin v Derwinski, 1 Vet. App. 121 (1991). Where the record
before the Board is inadequate, a remand is required. Green
v. Derwinski, 1 Vet. App. 171 (1991). Where a medical
opinion requested by the VA has not been rendered, the claim
must be remanded. Smith v. Brown, 5 Vet. App. 335 (1993).
An Increased Evaluation for Malaria
On August 30, 1996, new rating criteria for malaria were
promulgated, and codified under 38 C.F.R. § 4.88; Diagnostic
Code 6304 (1996). Where the law or regulation changes after
a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version more favorable to the veteran applies unless
Congress provides otherwise. Karnas v. Derwinski, 1 Vet.
App. 308 (1991). In this regard, the new criteria rate
residuals of malaria on the basis of liver damage or spleen
damage. A contemporaneous examination addressing liver or
spleen damage due to residuals of malaria would materially
assist in the adjudication of the claimant’s appeal.
In view of the foregoing, the case is REMANDED to the RO for
the following actions:
1. The RO should request the veteran to
identify all physicians, VA and non-VA,
who have treated him in the recent past
for his service-connected filariasis and
malaria. After obtaining any necessary
authorization, the RO should obtain
medical records from all sources
identified by the veteran which are not
already of record.
2. The veteran should undergo a VA
systemic/genitourinary examination to
determine the nature and extent of all
residuals of filariasis, to include any
left spermatic cord or testicle disorder
found to be present; and residuals of
malaria, to include any liver or spleen
damage. Any further indicated special
studies must be undertaken. Clinical
findings should be reported in detail.
The claims file and a separate copy of
this remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination. Any opinions expressed
as to the severity of filariasis and
malaria must be accompanied by a complete
rationale.
3. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the requested examination report
and expressed opinions to ensure that
they are responsive to and in complete
compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.
4. After undertaking any development
deemed essential in addition to that
specified above, the RO should
readjudicate the issues of entitlement to
increased evaluations for filariasis; and
malaria with application of both the old
and new criteria for rating malaria.
If the benefits requested on appeal are not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
Appellate rights do not attach to those issues addressed in
the remand portion of the Board’s decision, because a remand
is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1996).
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